For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan. For reversal -- Judge Conford. For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan. For affirmance -- Judge Conford. The opinion of the Court was delivered by Weintraub, C.J. Conford, P.J.A.D., Temporarily Assigned (dissenting).
The single question is whether a municipality has the power to adopt a rent control ordinance. In the Fort Lee and River Edge cases the ordinances were upheld, 120 N.J. Super. 286 (Law Div. 1972); in the North Bergen case the ordinance was struck down. The decisions followed upon different readings of Wagner v. City of Newark, 24 N.J. 467 (1957). We granted certification of the appeals to the Appellate Division before consideration there.
We must assume there is a critical shortage of the housing covered by the several ordinances here involved and that tenants, trapped by the fact, are being exploited. The judgments were entered on pretrial motions in which this factual premise was not challenged. Hence we have the naked legal issue whether the police power delegated to these municipalities includes the power to deal with the evil of inordinate rent arising out of a housing shortage.
There are three constituent questions: (1) does the State Constitution prohibit delegation to municipalities of the power to control rents in a period of critical housing need; (2) if that power may be granted, has the Legislature done so; and (3) if the State statutes vesting police power in municipalities do embrace this area, is the exercise of that power by local government preempted or barred by reason of the existence of other statutes dealing with the subject matter. These are the same questions presented in Wagner, supra, 24 N.J. 467, which struck down a rent control ordinance adopted by the City of Newark.
In the Fort Lee and River Edge cases the trial court read Wagner to turn upon the third question, that is, the existence at that time of a State statute dealing with rent control and preempting the subject, and there being no such statute today, the court found that Wagner did not bar municipal legislation. In North Bergen the trial court read Wagner to hold there was no grant of power to municipalities to deal with the subject. At the argument before us, counsel could
not agree as to which of the three legal propositions was pivotal in Wagner.
We will consider the three questions in the stated order.
Home rule is basic in our government. It embodies the principle that the police power of the State may be invested in local government to enable local government to discharge its role as an arm or agency of the State and to meet other needs of the community. Bergen County v. Port of New York Authority, 32 N.J. 303, 312-314 (1960); 56 Am. Jur. 2d, Municipal Corporations, § 23, pp. 87-88. Whether the State alone should act or should leave the initiative and the solution to local government, rests in legislative discretion.
There is a limitation upon the power to delegate. As Wagner pointed out, some matters must be dealt with at the State level. 24 N.J. at 478-479. For example, the law of wills or the law of descent and distribution may not be left to local decision. Nor could the State leave it to each municipality to say what shall constitute robbery or whether it shall be punished. The reason is evident. "The needs with respect to those matters do not vary locally in their nature or intensity. Municipal action would not be useful, and indeed diverse local decisions could be mischievous or even intolerable." Summer v. Teaneck, 53 N.J. 548, 553 (1969).
But except for such subjects, the Legislature may invest in local government the police power to devise measures tailored to the local scene. The Legislature may decide to do so for sundry reasons. A problem may exist in some municipalities and be trivial or nonexistent in others. And if the evil is of statewide concern, still practical considerations may warrant different or more detailed local treatment to meet varying conditions or to achieve the ultimate goal more effectively. Thus in holding that a municipality
may deal with racial "blockbusting" notwithstanding the constitutional limitation upon the delegation of the police power, we said in Summer v. Teaneck, supra, 53 N.J. at 553:
And it is of no constitutional moment that local decisions will mean diversity of treatment within the State. Diversity is an inevitable incident of home rule, for home rule exists to permit each municipality to act or not to act or to act in a way it believes will best meet the local need. West Morris Regional Board of Education v. Sills, 58 N.J. 464, 477 (1971), cert. denied, 404 U.S. 986, 92 S. Ct. 450, 30 L. Ed. 2d 370 (1971); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 231-232 (1960); Jamouneau v. Harner, 16 N.J. 500, 517-521 (1954), cert. denied, 349 U.S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955); In re Cleveland, 52 N.J.L. 188, 190-191 (E. & A. 1889); Paul v. Gloucester County, 50 N.J.L. 585, 608-609 (E. & A. 1888).
And the Legislature may invest the police power in local government in several ways. It may grant power without any restriction by way of stated standards for its exercise. Board of Health, Weehawken v. New York Central R.R. Co., 4 N.J. 293, 300-301 (1950). This of course is the usual format. Or the Legislature may limit the grant by specifying standards as it did in the case of zoning (the Constitution itself contains some standards with respect to
delegation of that power, Art. IV, § 6, para. 2). Or the Legislature may itself fashion a detailed treatment of a subject, and leave it to local government (or to the local electorate) to choose whether the statute shall operate within its borders. See In re Cleveland, supra, 52 N.J.L. at 190. This approach was used, for example, with respect to Sunday closing in the statute involved in Two Guys from Harrison, Inc. v. Furman, supra, 32 N.J. 199, and with respect to rent control in the statute upheld in Jamouneau v. Harner, supra, 16 N.J. 500.
Whether the police power to deal with a subject should be granted without restriction or should be tethered in one way or another is for the Legislature alone to say. We know of no principle under which the judiciary may insist upon one technique rather than another with respect to any topic which may constitutionally be left to local decision. And the constitutional limitation we mentioned earlier with respect to matters which require statewide uniformity is equally applicable no matter which technique of delegation the Legislature may choose. So, for example, to refer again to the subject of wills and of descent and distribution, the doctrine which forbids the delegation to municipalities of the power to enact an ordinance upon those subjects would equally bar the Legislature from leaving it to the several municipalities to say whether the State statutes upon those subjects shall be operative within their borders.
If the foregoing views are correct, then the question whether the Legislature can leave rent control to local decision was decided in favor of the power to do so in Jamouneau v. Harner, supra, 16 N.J. 500. There the State statute by its terms became "operative in any municipality in which the governing body shall adopt a resolution reciting that there is a housing space shortage therein and that rent control is required in such municipality for the protection, safety, health and general welfare of the people of such municipality" (16 N.J. at 517). A parallel provision
existed for decontrol and recontrol. This Court deemed this procedure "to be an eminently practical way of covering the areas of the State in need of rent control, and thus to avoid state-wide control in excess of the need and the attendant risks of going beyond the reasonable limits of the power" (16 N.J. at 517).
The question whether Wagner held the Legislature could not constitutionally delegate to municipalities the power to deal with this subject matter arises because Wagner referred to the proposition that some matters, such as wills and inheritance, are exclusively for statewide legislative decision. But Wagner did not say the Constitution places the subject of rent control in that ambit. Rather, without stating an explicit view upon that subject, Wagner went on to say that "Moreover, legislative history since the inception of federal controls after the beginning of World War II shows a clear recognition that rent control was not a matter within the realm of municipal power without express authority from the State," 24 N.J. at 479 (emphasis is ours).
The words we have just italicized repel the idea that Wagner meant the Legislature could not delegate to local government the power to deal with exploitation of a housing shortage. It is notable, too, that Wagner did not cite or distinguish or overrule Jamouneau, supra, 16 N.J. 500, which, as we have said, held that rent control may be left to local decision, there by the device of local option.
Indeed, Wagner stated as its final point that the City of Newark could act only under the terms of chapter 146 of the Laws of 1956. That statement involved the premise that rent control could be left to local decision. A number of municipalities, named in section 13 of that statute, Newark being one of them, had petitioned under Art. IV, § 7, para. 10, of the State Constitution for a special or local statute authorizing the adoption of an ordinance with respect to rent control. In response the Legislature enacted chapter 146 authorizing such ordinances, which statute, by its terms, was inoperative in any municipality unless the statute was
adopted by its governing body, § 18. Thus chapter 146 delegated the power to local government and Wagner deemed the delegation to be valid.*fn1
If Wagner intended to say rent control may not be left to local government, Wagner would be singular. Cases elsewhere unanimously recognize that the power may be invested in local government. See Huebeck v. City of Baltimore, 205 Md. 203, 107 A.2d 99 (Ct. App. 1954); Teeval Co. v. Stern, 301 N.Y. 346, 93 N.E. 2d 884 (Ct. App. 1950), cert. denied, 340 U.S. 876, 71 S. Ct. 122, 95 L. Ed. 637 (1950); I.L.F.Y. Co. v. City Rent and Rehabilitation Administration, 11 N.Y. 2d 480, 230 N.Y.S. 2d 986, 184 N.E. 2d 575 (Ct. App. 1962); Hartley Holding Corp. v. Gabel, 13 N.Y. 2d 306, 247 N.Y.S. 2d 97, 196 N.E. 2d 537 (Ct. App. 1963); 8200 Realty Corporation v. Lindsay, 27 N.Y. 2d 124, 313 N.Y.S. 2d 733, 261 N.E. 2d 647 (Ct. App. 1970), appeal dismissed, 400 U.S. 962, 91 S. Ct. 367, 27 L. Ed. 2d 381 (1970); Warren v. City of Philadelphia, 382 Pa. 380, 115 A.2d 218 (Sup. Ct. 1955). Decisions which concluded that the Legislature had not empowered municipalities to act did not suggest a constitutional impediment would stand in the way if the Legislature chose to do so. See Old Colony Gardens, Inc. v. City of Stamford, ...